Citation Nr: 21028787 Decision Date: 05/12/21 Archive Date: 05/12/21 DOCKET NO. 14-00 033 DATE: May 12, 2021 ORDER Entitlement to service connection for major depressive disorder (MDD) is denied. FINDING OF FACT MDD was not manifested during the Veteran's active duty service, and it is not shown that the Veteran's MDD was related to a disease, event, or injury in service. CONCLUSION OF LAW The criteria for service connection for MDD are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Navy Reserve from February 28, 1972 to April 20, 1972. He died in September 2017. The appellant is the surviving spouse. This matter is before the Board of Veterans' Appeals (Board) on appeal from a March 2012 rating decision. In February 2017, a video conference was held (before a Veterans Law Judge who has since retired); a transcript is in the record. In June 2020 the matter was remanded for additional development. In a March 2021 correspondence, the appellant was notified that the Veterans Law Judge who conducted the February 2017 video conference hearing had retired. A response requesting an additional hearing was not received within 30 days from the date of the letter, therefore, the Board will assume that the appellant did not want another hearing and to proceed accordingly. Entitlement to service connection for MDD is denied. Service connection may be established for disability due to disease or injury that was incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. To establish service connection for a claimed disability, there must be evidence of: (i) a present claimed disability; (ii) incurrence or aggravation of a disease or injury in service; (iii) and a causal relationship between the present disability and the disease or injury in service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303 (a). While certain chronic diseases, to include psychosis, may be service connected on a presumptive basis if manifested to a compensable degree within a specified period of time following service, this claim is not entitled to consideration under the chronic disease presumptive provisions as the Veteran did not have had the qualifying (90 day) period of active duty service for such presumption. See 38 U.S.C. § 1112 (a); 38 C.F.R. § 3.307. Nexus of a chronic disease to service may be established by showing continuity of symptomatology following service. Walker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013). Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a layperson. 38 C.F.R. § 3.159 (a)(2). Competent medical evidence is necessary where the determinative question requires medical knowledge. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises. Competent medical evidence may also include statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159 (a)(1). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). On January 1970 report of medical history. The Veteran reported that he had no history of sleep walking. He reported no frequent trouble sleeping, no depression or excessive worry, and no nervous trouble of any sort. On February 1972 report of medical examination, the Veteran's psychiatric clinical evaluation was normal. On April 1972 service treatment record (STR), a lifelong history of sleep walking was reported by the Veteran. It was noted that sleepwalking was observed every night while the Veteran was hospitalized in service. The Veteran reported that the recruiter told him to not put down that he was a sleepwalker because he wanted to get into the Navy. An April 1972 STR notes a provisional diagnosis of sleepwalking. An undated statement signed by the Veteran states in part that he did not suffer any injuries or illness during his period of active duty. See STR Medical pg. 7. An April 1972 narrative summary following the Veteran's appendectomy notes the Veteran began experiencing abdominal pain 48 hours prior to admission. A past medical history of sleep walking and fainting spells was noted. It was noted that the Veteran's appendix appeared grossly normal with some enlargement of the ileum mesentery lymph nodes. No surgical operative complications were noted. Postoperative course was noted as unremarkable. It was noted that the Veteran was found sleep walking nearly every night while admitted to the hospital. He was evaluated by a psychiatrist and neurologist and no signs or symptoms of organic disease were found. The discharge diagnosis was mesenteric adenitis and sleep walking. In April 1972 the Veteran was discharged from service due to unsuitability (Code 265 for character disorder). See DD 214. A February 2005 hospitalization discharge summary notes a diagnosis of MDD with psychotic features and generalized anxiety disorder. The record notes poor health and domestic problems. The Veteran was sent to the emergency room after breaking down and crying in the internal medicine outpatient clinic. The Veteran reported a history of depression and excessive worry. Health troubles were noted as multiple myocardial infarctions and poorly controlled diabetes and hypertension. Stressors were noted as poor health, and financial concerns. The Veteran reported waking to seeing a faceless woman in his room, and hearing his name called at times. He reported problems with sleep, appetite, and concentration. A September 2005 discharge summary notes MDD (recurrent episode). An August 2009 treatment record notes the Veteran was seen with a diagnosis of adjustment disorder with mixed anxiety and depressed mood. It was noted that the Veteran suffered a recent death of two friends in a motorcycle accident. An August 2011 mental health treatment record noted recurrent major depression and listed stress of caring for a great grandchild, financial stress, and grief. A December 2011 treatment record notes the Veteran was seen for a mental health medication follow up appointment. It was noted that the Veteran was appropriately concerned with financial strain, but otherwise denied symptoms of depression, mania, or anxiety. The assessment was adjustment disorder with mixed anxiety and depressed mood. An April 2012 mental health record notes the Veteran reported being a bit depressed with financial concerns. A November 2013 mental health record notes a diagnosis of MDD (with recurrent episodes based on active stressors but never fully remitting). Some depressed mood in 1968 (grief) following the death of his father was noted. Depression was noted as worse following military service, but notably worse with family stressors. On November 2013 mental disorders DBQ, the diagnoses of MDD (noted as moderate and in partial remission), alcohol dependence (in sustained full remission). The Veteran reported depression first came into his life prior to service when his father died. He reported a history of childhood sleep walking. The Veteran described a history of illusions and/or hallucinations from early childhood. The Veteran reported that he "died on the operating table and they brought me back" during surgery in service. He reported that he was kicked by the commanding officer who ruptured his appendix. The Veteran also reported accidently shooting his friend at the age of twelve or thirteen. The examiner opined that it was less likely than not that the Veteran's depression was caused or incurred by his sleep walking which occurred in service. The examiner noted the Veteran was first hospitalized with major depression in 2005. The examiner also noted that his first depressive episode occurred before service with the death of his father, and that the Veteran also described situational factors contributing to his depression such as health concerns. In an August 2020 medical opinion, the clinician opined that it was less likely than not that the Veteran's MDD had its onset in or was otherwise medically related to any in service injury disease or even in service, particularly to include injury from a kick resulting in an emergency appendectomy surgery, emotional trauma, and subsequent discharge from service. The clinician noted that the Veteran was treated for depression beginning in 2005, with ongoing treatment relating to grief, health concerns, and family stressors. The clinician noted that the Veteran had not mention the alleged incident that caused his appendectomy until 2013 (although he had been receiving treatment for depression since 2005). It is not in dispute that the Veteran had MDD. His post-service treatment records indicate that he received treatment related to MDD beginning in February 2005. Records indicate that the Veteran was discharged from service for a finding of unsuitability. The record also indicates that the Veteran underwent appendectomy surgery while in service. What remains necessary to substantiate the claim of service connection for MDD is competent evidence that the Veteran's MDD was caused or related to his service. The earliest treatment of record related to MDD occurred in February 2005 when the Veteran was hospitalized with depression related to health concerns and domestic problems. Consequently, service connection for MDD on the basis that such disability became manifest in service and persisted is not warranted. The Board has considered whether service connection for MDD is warranted based on a continuity of symptomatology theory of entitlement, but continuity of symptomatology is not shown Whether the Veteran's MDD was related to his service (to include his alleged incident of being kicked) is a medical question. The Veteran's own opinion that his MDD was related to service was not competent evidence in this matter. Although he was competent to report on symptomatology associated with MDD, he was not competent to establish by his own account that such MDD symptoms were related to service. The Veteran did not cite to any supporting medical opinion in the matter, or medical treatise evidence that related his MDD to his service. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The most probative (medical opinion) evidence in the record is the August 2020 medical opinion that the Veteran's MDD was not caused or related to service. This opinion considered the evidence of record (including the narrative summary from the Veteran's appendectomy in service as well as the Veteran's post-service mental health treatment records). The clinician addressed the allegation that the Veteran's MDD was related to being kicked in the stomach, but found such etiology to be inconsistent with the evidence of record. The clinician noted that the Veteran had described other causes of his depression when he sought treatment (noting that depression was most frequently brought on by familial stressors). The Board finds such opinion to be thorough in the review of the record, and complete in the explanation provided for the opinion against this claim. The Board finds that in the absence of competent medical evidence to the contrary, such opinion is persuasive. The preponderance of the evidence is against this claim. Accordingly, the appeal in this matter must be denied. A. J. Spector Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Staskowski, Associate Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.